Spies cannot sue the U.S. government for allegedly reneging on their espionage contracts, the Supreme Court ruled yesterday, in a decision that confirmed the latitude that intelligence agencies have traditionally claimed to recruit foreign agents beyond the normal margins of the law.
By a vote of 9 to 0, the court dismissed a lawsuit by two former Soviet bloc diplomats who said the CIA induced them to betray their countries during the Cold War in return for a pledge of resettlement in the United States and a lifetime income -- then refused to live up to the deal without so much as a hearing after the U.S.-Soviet conflict ended.
 
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Writing for the court, Chief Justice William H. Rehnquist said the applicable rule had been laid down in 1876, when the court threw out a suit by a former Union spy seeking his promised pay from the federal government. In that case, the court held that a suit to enforce an espionage contract is inconsistent with the mutual pledge of secrecy that forms a central condition of any such arrangement.
The decision was a victory for the Bush administration, which had argued that anti-terrorism efforts could be hampered if case officers attempting to recruit intelligence sources had to worry about being sued every time they tried to cut a deal with a would-be spy or defector.
It reversed a decision by the U.S. Court of Appeals for the 9th Circuit, which had ruled in 2003 that the two former diplomats, a married couple who sued as John and Jane Doe, should be allowed to proceed because they sought not merely to get paid but to enforce a constitutional right to a fair hearing. The government's interests could be protected by conducting all or part of the case behind closed doors, the 9th Circuit said.
But yesterday, the Supreme Court said that the 9th Circuit was "quite wrong" and that the 1876 ruling, Totten v. United States, was a broad one, intended to forbid all claims against the government stemming from clandestine espionage agreements.
"No matter the clothing in which alleged spies dress their claims," Rehnquist wrote, "Totten precludes judicial review in cases such as [the Does',] where success depends upon the existence of their secret espionage relationship with the Government."
As for the possibility that leaks could be prevented by conducting a lawsuit in secret, or permitting the government to invoke a state-secrets privilege to prevent the disclosure of national security information, Rehnquist wrote that such measures "simply cannot provide the absolute protection we found necessary in enunciating the Totten rule."
"The possibility that a suit may proceed and an espionage relationship may be revealed, if the state secrets privilege is found not to apply, is unacceptable," Rehnquist wrote.
The opinion was the first by the ailing chief justice in any case argued since November, when he began sitting out oral arguments because of his battle with thyroid cancer.
The case, Tenet v. Doe, No. 03-1395, was argued Jan. 11.
